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Court guidance on how to deal with the thorny issue of expert fees
  • Feb 1, 2024
  • Latest News

His Honour Judge Bird, sitting at Manchester County Court, in the case of Northampton General Hospital NHS Trust v Hoskin 2023, has issued a judgment which amounts to a useful reminder for those on all sides as to how to resolve costs disputes concerning expert fees.

Expert fees often form a large proportion of the costs involved in litigation, whether you act on behalf of the Claimant or a Defendant.   In these inflationary times these issues have perhaps come into even greater focus.

This case concerned a costs dispute in a personal injury claim inwhich the only remaining issues were relating to a medical report from a cardiologist claimed at £8,795 plus VAT and a medical report from a consultant in obstetrics and gynaecology claimed at £5,400 plus VAT.  Invoices for each item were issued by Premex Services Limited, a well-known medical reporting agency (MRO). The Defendant’s solicitors asked for a breakdown of these invoices in order to establish how much of the fees charged related to the services provided by Premex and how much related to the medical expert’s fees. Premex rejected this request stating that the invoice amounts were both reasonable and proportionate so there was no need for a breakdown.

HHJ Bird reviewed the well-known 2002 case of Stringer v Copley in which His Honor Judge Cook decided in what was another case concerning medical agency fees “it is important that their invoices (or fee notes) should distinguish between the medical fee and their own charges, the latter being sufficiently particularised to enable the cost officer to be satisfied they do not exceed the reasonable and proportionate cost of the solicitors doing the work”.  HHJ Cook also went on to say in that case that he was “satisfied that there is no point of principle which precludes the fees of a medical agency being recoverable between the parties, provided it is demonstrated that their charges do not exceed the reasonable and proportionate costs of the work if it had been done by solicitors.”  This case was also referred to in later cases as “trite law”, although it was noted that the decision did not refer to any CPR provision then in force.   HHJ Bird noted the governing provision now is CPR PD 47, and in particular paragraph 5.2, which states that a party on assessment must serve copies of the fee notes of any expert in respect of fees claimed in the bill. Premex is not an expert so this is not complied with by serving a copy of their fee note alone.  A party must therefore provide the fee note of the expert instructed and, where such costs are claimed, details of the costs of any MRO.

Comment: This decision is not new law but rather a confirmation that the position as it was understood back in 2002 remains true today under the current CPR provisions.  Although as a lower court decision this is not binding, it will nevertheless be persuasive. This is likely to change the way costs are dealt with as in recent times it has become common for receiving parties to serve only MRO fee notes where an MRO is used. Receiving parties who continue to resist providing the necessary breakdown will risk recovering nothing for the disputed items.

It is understood the decision is under appeal so watch this space for any further developments!

Kelvin Farmaner
Trethowans LLP
15 June 2023